PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6655
VERNON NORMAN EARLE,
Plaintiff - Appellant,
v.
SHREVES, C/O; J. RIVERA, Unit Manager for M-Unit at FCI Hazelton; R.
DOMAS, Unit Manager for L-Unit; D. WASHINGTON, Operating Lieutenant; MR.
GONOUNDY, [SIA] Special Investigative Agent; MR. BRECKON, Assistant
Warden of Operations; RACHEL THOMPSON, Administrative assistant/Remedy
Coordinator; JENNIFER SAAD, Warden of FCI Hazelton; K. KELLY, Captain of
FCI Hazelton; A. GYORKO, Case manager for Unit N-2 and for Plaintiff Directly;
C. T. PULICE, Case Manager Coordinator; J. F. CARAWAY, Mid-Atlantic
Regional Director; IAN CONNORS, National Inmates Appeals Administrator; MR.
SQUIRES, [SIS] special investigative Service Lieutenant,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of West Virginia, at
Elkins. John Preston Bailey, District Judge. (2:17-cv-00004-JPB-RWT)
Argued: December 9, 2020 Decided: March 10, 2021
Before KEENAN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge
Keenan and Judge Richardson joined.
ARGUED: Olivia O’Hea, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Erin K. Reisenweber, OFFICE OF THE UNITED
STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Erica
Hashimoto, Director, Marcella Coburn, Supervising Attorney, Cynthia Anderson, Student
Counsel, Matthew Angelo, Student Counsel, Connor Suozzo, Student Counsel, Appellate
Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
for Appellant. William J. Powell, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellees.
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TRAXLER, Senior Circuit Judge:
In this case, we are called on to determine whether the implied constitutional cause
of action recognized by the Supreme Court in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), may be extended to include a federal
inmate’s claim that prison officials violated his First Amendment rights by retaliating
against him for filing grievances. As we will explain, such an extension of Bivens is not
permissible after Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and Tun-Cos v. Perrotte, 922
F.3d 514 (4th Cir. 2019), cert. denied, 140 S. Ct. 2565 (2020), and we therefore affirm the
district court’s judgment dismissing the action.
I.
Plaintiff Vernon Earle is serving a life sentence after being convicted in the District
of Columbia of various charges including murder. In 2015, when the incidents involved
in this case occurred, Earle was serving his sentence at a federal correctional institution in
West Virginia.
According to the allegations of Earle’s complaint, Earle’s unit was locked down
after an inmate punched Defendant Michael Shreves, a correctional officer. During the
lockdown, Earle was denied hot meals and other privileges available to other inmates. He
subsequently filed two grievances complaining about Shreves’ conduct that precipitated
the lockdown. Instead of handling the grievances in the usual manner, officers turned them
over to Shreves, who directed another officer to place Earle and another complaining
inmate in administrative detention in the Special Housing Unit (SHU). Earle remained in
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the SHU for 30 days; despite multiple requests, he was never told why he had been placed
in segregation.
Earle alleged that after he was released from the SHU, the warden told him he was
placed in the SHU because of the grievances he filed. The warden stripped Earle of his
prison job and transferred him to a different housing unit. Earle’s new case manager
unfairly increased Earle’s custody classification points because Earle “love[d] to file.” J.A.
21.
After exhausting prison remedies, Earle filed the complaint giving rise to this
appeal. Earle alleged that Shreve and numerous other named defendants conspired to
violate his First Amendment rights by retaliating against him for seeking resolution of his
informal grievances. He also contended his placement in the SHU violated the Fifth and
Eighth Amendments. The defendants moved to dismiss, or, in the alternative, for summary
judgment. They argued that the First Amendment claim should be dismissed as an
impermissible extension of Bivens after Ziglar. On the merits of the constitutional claims,
the defendants contended they were entitled to summary judgment because Earle could not
prove any constitutional violation and that they were entitled to qualified immunity. The
defendants submitted affidavits from Shreve and others asserting that Earle was placed in
the SHU pending an investigation into his grievances, which Shreve believed contained
threating language.
The district court granted summary judgment in favor of the defendants. Without
addressing whether a Bivens remedy was available, the court held that the First Amendment
claim failed “because there is no First Amendment right to file grievances.” J.A. 238. As
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to the remaining claims, the district court held that Earle’s evidence was insufficient to
show a constitutional violation and that the defendants were therefore entitled to qualified
immunity. This appeal followed.
On appeal, Earle does not challenge the district court’s rejection of his claims under
the Fifth and Eighth Amendments. Accordingly, the only claim at issue in this appeal is
Earle’s Bivens claim alleging a conspiracy to violate his First Amendment rights.
II.
A.
A person whose constitutional rights have been violated by a state official may bring
an action seeking monetary damages against the official under 42 U.S.C. § 1983. “But §
1983 does not provide a cause of action against federal officials, and there is no analogous
statute imposing damages liability on federal officials.” Tun-Cos, 922 F.3d at 520.
In Bivens, the Supreme Court recognized for the first time an implied cause of action
for damages against federal officers alleged to have violated a citizen’s rights under the
Constitution and permitted the plaintiff to seek compensatory damages from federal agents
alleged to have violated the Fourth Amendment. See 403 U.S. at 396-97. In the years since
Bivens was decided, however, the Supreme Court’s approach to implied damage remedies
has changed dramatically, to the point that “expanding the Bivens remedy is now a
disfavored judicial activity.” Ziglar, 137 S. Ct. at 1857 (internal quotation marks omitted).
Whether an implied damage remedy is available for a constitutional claim is
logically “antecedent” to any question about the merits of the claim. Hernandez v. Mesa,
137 S. Ct. 2003, 2006 (2017) (internal quotation marks omitted). The implied-remedy
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question does not go to the jurisdiction of the court, and it is sometimes appropriate for a
court to assume the existence of a Bivens remedy and dispose of the claim by resolving the
constitutional question. Id. at 2007. In this case, because this area of the law is in flux and
guidance would be beneficial, we believe it is appropriate to determine whether a Bivens
remedy is available for Earle’s First Amendment claim. See Bistrian v. Levi, 912 F.3d 79,
89 (3d Cir. 2018) (“[T]hreshold questions are called that for a reason, and it will often be
best to tackle head on whether Bivens provides a remedy, when that is unsettled.”).
B.
As the Supreme Court explained in Ziglar, “it is a significant step under separation-
of-powers principles for a court to determine that it has the authority, under the judicial
power, to create and enforce a cause of action for damages against federal officials in order
to remedy a constitutional violation.” Ziglar, 137 S. Ct. at 1856. Accordingly, in the years
since Bivens was decided, the Court has proceeded cautiously. The Supreme Court has
refused to extend Bivens numerous times, see id. at 1857, but has extended the Bivens
remedy beyond the Fourth Amendment to only two new contexts. The Court has permitted
a federal prisoner to pursue a Bivens claim raising an Eighth Amendment claim of
deliberate indifference to serious medical needs, see Carlson v. Green, 446 U.S. 14, 18-19
(1980), and it has also permitted an employee of a member of Congress to bring a Bivens
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action alleging gender discrimination under the Due Process Clause of the Fifth
Amendment, see Davis v. Passman, 442 U.S. 228, 248-49 (1979). 1
Consistent with the Court’s view that further expansion of the Bivens remedy was
disfavored, the analytical framework established by the Ziglar Court places significant
obstacles in the path to recognition of an implied cause of action. “First, courts must
inquire whether a given case presents a ‘new Bivens context.’ If the context is not new . .
. then a Bivens remedy continues to be available.” Tun-Cos, 922 F.3d at 522–23 (quoting
Ziglar, 137 S. Ct. at 1859). “But if the context is new, then courts must, before
extending Bivens liability, evaluate whether there are ‘special factors counselling
hesitation in the absence of affirmative action by Congress.’ If any such ‘special factors’
do exist, a Bivens action is not available.” Id. at 523 (quoting Ziglar, 137 S. Ct at 1857).
1.
We first consider whether this case involves a “new context” for Bivens purposes.
A case presents a new Bivens context “[i]f the case is different in a meaningful way from
previous Bivens cases decided by [the Supreme] Court.” Ziglar, 137 S. Ct. at 1859. Rather
than give a precise definition, the Court gave examples to illustrate the kinds of
“differences that are meaningful enough,” id., to present a new context:
1
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court considered
an inmate’s Bivens claim alleging that federal prison officials violated the Eighth
Amendment through deliberate indifference to the inmate’s need for protection from other
inmates. The Court acknowledged that the action was brought under Bivens, see id. at 830,
839, but did not question the propriety of the Bivens remedy in that case. The Ziglar Court
did not include Farmer in its list of accepted contexts for Bivens claims. Our resolution of
this appeal, however, does not depend on Farmer’s precise status after Ziglar.
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A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive
intrusion by the Judiciary into the functioning of other branches; or the
presence of potential special factors that previous Bivens cases did not
consider.
Id. at 1860.
Although federal prison officials like the defendants in this case are already subject
to Bivens claims asserting Eighth Amendment violations, the claim at issue here arises
under the First Amendment and is governed by a very different body of case law. The
Supreme Court has never recognized a First Amendment based Bivens remedy in any
context. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held
that Bivens extends to First Amendment claims.”); Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009) (assuming without deciding that Bivens extends to a First Amendment free exercise
claim); Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to extend Bivens to a First
Amendment speech claim brought by federal employee). We therefore have little difficulty
concluding that, as Earle himself concedes, this case presents a new context for Bivens
purposes. See Tun-Cos, 922 F.3d at 525 (concluding that plaintiffs’ Fifth Amendment
claims presented a new context in part because the claims “have no analogue in the
Supreme Court’s prior Bivens cases”); Bistrian, 912 F.3d at 95–96 (finding federal
inmate’s First Amendment retaliation claim to present a new Bivens context because the
claim was “novel” “from the vantage of boundaries set by the Supreme Court”).
2.
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Because this case presents a new Bivens context, we must determine whether there
are “special factors counselling hesitation” in implying a cause of action. Ziglar, 137 S.
Ct. at 1857 (internal quotation marks omitted). “If any such special factors do exist, a
Bivens action is not available.” Tun-Cos, 922 F.3d at 523 (internal quotation marks
omitted).
The focus of the special-factors inquiry is “whether the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed. Thus, to be a ‘special factor counselling hesitation,’
a factor must cause a court to hesitate before answering that question in the affirmative.”
Ziglar, 137 S. Ct 1858.
It is not necessarily a judicial function to establish whole categories
of cases in which federal officers must defend against personal liability
claims in the complex sphere of litigation, with all of its burdens on some
and benefits to others. It is true that, if equitable remedies prove insufficient,
a damages remedy might be necessary to redress past harm and deter future
violations. Yet the decision to recognize a damages remedy requires an
assessment of its impact on governmental operations systemwide. Those
matters include the burdens on Government employees who are sued
personally, as well as the projected costs and consequences to the
Government itself when the tort and monetary liability mechanisms of the
legal system are used to bring about the proper formulation and
implementation of public policies. These and other considerations may make
it less probable that Congress would want the Judiciary to entertain a
damages suit in a given case.
. . . . [I[f there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the system for enforcing
the law and correcting a wrong, the courts must refrain from creating the
remedy in order to respect the role of Congress in determining the nature and
extent of federal-court jurisdiction under Article III.
Id.
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In this case, we believe there are several special factors that counsel hesitation.
First, even without a Bivens cause of action, Earle is not completely without remedy. Like
all federal inmates, Earle has “full access to remedial mechanisms established by the BOP,
including suits in federal court for injunctive relief and grievances filed through the BOP’s
Administrative Remedy Program.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001);
see 28 C.F.R. § 542.10(a) (“The purpose of the Administrative Remedy Program is to
“allow an inmate to seek formal review of an issue relating to any aspect of his/her own
confinement.”). While these alternate remedies do not permit an award of money damages,
they nonetheless offer the possibility of meaningful relief and therefore remain relevant to
our analysis.. See Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (declining to imply a
Bivens remedy for due process claims springing from the denial of Social Security benefits
despite unavailability of compensatory damages under alternate remedial scheme); Tun-
Cos, 922 F.3d at 526-27 (“The plaintiffs are correct that the protections provided by the
INA do not include a money damages remedy and often do not redress constitutional
violations that occur apart from removal proceedings. But this misses the point, for the
relevant question is not what remedy the court should provide for a wrong that would
otherwise go unredressed but instead whether an elaborate remedial system should be
augmented by the creation of a new judicial remedy.” (internal quotation marks and
alteration omitted)).
Moreover, Earle’s claim that he was placed in the SHU in retaliation for his
grievance raises serious questions relating “to the reasoning, manner, and extent of prison
discipline.” Bistrian, 912 F.3d at 94. “Whether to place an inmate in more restrictive
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detention involves real-time and often difficult judgment calls about disciplining inmates,
maintaining order, and promoting prison officials’ safety and security.” Id. at 96. As the
Third Circuit explained, prison officials must have discretion “to determine detention
policies, to assess the endless variety of circumstances in which those policies may be
implicated, and to decide when administrative detention is deserved and for how long.” Id.
at 94. Given the ease with which an inmate could manufacture a claim of retaliatory
detention, 2 allowing a Bivens action for such claims could lead to an intolerable level of
judicial intrusion into an issue best left to correctional experts. See id. (“The Bureau of
Prisons, not the judiciary, has the expertise, planning, and the commitment of resources
necessary for the difficult task of running a correctional facility.”) (internal quotation marks
omitted); see also Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir. 1980) (“It is a rule
grounded in necessity and common sense, as well as authority, that the maintenance of
discipline in a prison is an executive function with which the judicial branch ordinarily will
not interfere.”) (citation and internal quotation marks omitted).
In sum, the recognition of a Bivens remedy in this case would work a significant
intrusion into an area of prison management that demands quick response and flexibility,
and it could expose prison officials to an influx of manufactured claims. And while the
absence of a Bivens remedy forecloses any claims for monetary compensation, there are
nonetheless other avenues available to inmates that offer the possibility of meaningful
2
An inmate who engaged in misconduct could simply file a grievance related
to his own action and then rely on that grievance to challenge any discipline subsequently
imposed on him as retaliatory.
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remedial relief for claims of retaliatory discipline. Under these circumstances, we believe
that Congress, not the Judiciary, is in the best position to “weigh the costs and benefits of
allowing a damages action to proceed.” Ziglar, 137 S. Ct. at 1858.
Accordingly, because we find special factors that counsel hesitation before
expanding the Bivens remedy, we must reject Earle’s attempt to extend the Bivens remedy
to his claim that the defendants violated his First Amendment rights by retaliating against
him for filing grievances. See Tun-Cos, 922 F.3d at 523 (“If any such special factors
[counseling hesitation] do exist, a Bivens action is not available.”) (internal quotation
marks omitted); see also Mack v. Yost, 968 F.3d 311, 324-25 (3d Cir. 2020) (applying
Ziglar to reject inmate’s Bivens claim that prison officials stripped him of his prison job in
retaliation or filing grievances); Callahan v. Federal Bureau of Prisons, 965 F.3d 520, 525
(6th Cir. 2020) (declining “to recognize a new Bivens action for free speech claims in
prisons”); Bistrian, 912 F.3d at 96 (concluding that the special-factors analysis precludes
extending Bivens to inmate’s claim that prison officials placed him in administrative
detention to retaliate for grievances filed by the inmate).
III.
For the foregoing reasons, we decline to expand the Bivens remedy to include the
First Amendment retaliation claim asserted by Earle. Because Earle has no cause of action,
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we hereby affirm the district court’s judgment dismissing Earle’s First Amendment
retaliation claim. 3
AFFIRMED
3
See, e.g., McMahan v. Int’l Ass’n of Bridge, Structural & Ornamental Iron
Workers, 964 F.2d 1462, 1467 (4th Cir. 1992) (“We of course have the power to affirm a
judgment for any reason appearing on the record, notwithstanding that the reason was not
addressed below.”).
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